Gail Lewis Hicks and the Estate of Larry Hicks, Appellants v. Keith L. Head, Appellee (2025)

MEMORANDUM DECISION

[1] Gail Lewis Hicks and the Estate of Larry Hicks (“Plaintiffs”) appeal the trial court's entry of summary judgment in favor of Keith L. Head. We affirm.

Facts and Procedural History

[2] On July 20, 2020, Plaintiffs ¹ filed a complaint against Head and American Family Insurance Company, S.I. (“American Family”). The complaint was based upon an automobile accident that occurred on July 22, 2018. Plaintiffs alleged that Pamela Dickerson negligently drove a vehicle belonging to Head and insured by American Family, causing the accident, bodily injury, property damage, and emotional distress. Plaintiffs alleged that Head negligently allowed Dickerson to drive his vehicle.

[3] On November 27, 2024, Head filed a motion for summary judgment.² He designated portions of the deposition of Gail Lewis Hicks and argued that there was no evidence showing “any negligent entrustment” by Head in letting Dickerson drive his vehicle. Appellee's Appendix Volume II at 65. He argued that Gail admitted that she had no information that Head “should not have let [Dickerson] drive his car.” Id. at 66. On December 11, 2024, Plaintiffs filed their response, designating only a certified copy of the Indiana Officer's Standard Crash Report associated with the July 2018 accident. The Report provided that Dickerson “stated that she looked down and was distracted when [her vehicle] impacted the rear bumper” of the vehicle driven by Gail. Id. at 80. Plaintiffs did not mention or address the evidence designated by Head which he alleged demonstrated the lack of a genuine issue regarding the negligent entrustment claim.

[4] At the direction of the trial court, on March 5, 2025, Plaintiffs submitted a second response to Head's motion for summary judgment. Again, Plaintiffs did not mention or address their claim of negligent entrustment. Rather, Plaintiffs defined the “[e]lements of a contract,” argued that they were entitled to a “contract remedy,” and argued that because Head had “settled the complaint” in a “companion case” regarding the same accident involving different plaintiffs,³ such “settlement acknowledges the liability” of Head. Id. at 87. Plaintiffs further argued that Head “filed for Chapter 7 Bankruptcy for a debt [he] states he (Head) owes to Plaintiffs.” Id. at 89. The only evidence designated by Plaintiffs in their second response was a Notice of Chapter 7 Bankruptcy Case filed by Head under Case Number 23-21995-jra on or about November 19, 2023. Head filed his reply, designating a redacted Release of All Claims regarding the claim made by the other plaintiffs which clarified that neither Dickerson nor Head admitted to any liability or wrongdoing regarding the July 2018 accident.

[5] The court held a summary judgment hearing on March 14, 2025. On March 18, 2025, the court entered its order granting Head's motion for summary judgment. Specifically, the court found:

1. That on March 6, 2025, Plaintiffs, for the first time notified the herein Court that [Head] filed a Chapter 7 bankruptcy petition on November 29, 2023 in the United States Bankruptcy Court for the Northern District of Indiana, Case Number: 23:21995.

2. That [Head] filed the aforesaid Chapter 7 bankruptcy petition subsequent to the filing of the herein cause of action listing the Plaintiffs as creditors and a stay of any and all causes of action came into being as a result of 11 USC § 362.

3. That Plaintiffs were required under bankruptcy law (Bankr. Rule 4001) to seek relief of stay; Plaintiffs never did same.

4. That on December 26, 2023 the Chapter 7 trustee filed his “no asset” report in [Head's] bankruptcy estate.

5. That on March 5, 2024 [Head] received his bankruptcy discharge pursuant to 11 USC § 344 freeing him from all liability, if any, to Plaintiffs.

6. That on March 27, 2024 [Head's] case was closed by the US Bankruptcy Court for the Northern District of Indiana (Hammond Division0.

7. That Plaintiffs shall take nothing by way of their Complaint.

8. That [Head's] Motion for Summary Judgment shall be granted.

9. That the herein Order is final and appealable.

Appellants’ Appendix Volume II at 31-32.

Discussion

[6] Plaintiffs contend that the trial court erred in entering summary judgment in favor of Head. Our standard of review is well settled. Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Mangold ex rel. Mangold v. Ind. Dep't of Natural Res., 756 N.E.2d 970, 973 (Ind. 2001). Our review is de novo, drawing all reasonable inferences from the evidence in favor of the nonmovant. Ind. Dep't of Ins. v. Doe, 247 N.E.3d 1204, 1210 (Ind. 2024) (citing Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014)). “A fact is ‘material’ if its resolution would affect the outcome of the case, and an issue is ‘genuine’ if a trier of fact is required to resolve the parties’ differing accounts of the truth ․” Williams v. Tharp, 914 N.E.2d 756, 761 (Ind. 2009). In reviewing a trial court's ruling on a motion for summary judgment, we may affirm on any grounds supported by the Indiana Trial Rule 56 designated materials. Catt v. Bd. of Commr's of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002).

[7] The party appealing the trial court's summary judgment determination bears the burden of persuading the appellate court the ruling was erroneous. Ryan v. TCI Architects/Eng'rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017). In the summary judgment context, we are not bound by the trial court's specific findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). They merely aid our review by providing us with a statement of reasons for the trial court's actions. Id.

[8] As noted by Head, the Argument section of Plaintiffs brief is “slightly more than half a page, and [Plaintiffs] do not identify any facts (or genuine disputes of material fact) affecting the trial court's entry of summary judgment.” Appellee's Brief at 13. Indeed, “[Plaintiffs] fail to even mention [Head's] bankruptcy and discharge, which forms the basis for the trial court's decision, much less cite any case law that could show summary judgment was improper.” Id. Other than a bald request for us to simply “transfer the present case” to the court that presided over the settlement involving other plaintiffs, the sole assertion in Plaintiffs’ brief is that “the liability of [Head] is based upon insurance that he (Head) purchased specifically to cover [Dickerson]—the driver of [Head's] vehicle.” Appellant's Brief at 7. The Argument section contains no citation to the record or to any legal authority.

[9] Appellate Rule 46(A)(8)(a) provides “[t]he argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning” and “[e]ach contention must be supported by citations to the authorities, statutes, and the Appendix or parts of the Record on Appeal relied on ․” Appellate Rule 46(A)(8)(b) provides the argument “must include for each issue a concise statement of the applicable standard of review” and “a brief statement of the procedural and substantive facts necessary for consideration of the issues presented on appeal, including a statement of how the issues relevant to the appeal were raised and resolved by any ․ trial court.” It is well established that failure to present a cogent argument constitutes waiver of an issue on appellate review. Finnegan v. State, 240 N.E.3d 1265, 1269 n.1 (Ind. 2024) (citing Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005)), reh'g denied. We have little difficulty determining that Plaintiffs have waived their challenge to the trial court's summary judgment ruling for failure to make cogent argument.

[10] Notwithstanding waiver, the record makes clear that Plaintiffs submitted the issue of Head's 2023 bankruptcy filing, and its effect on their negligence claim, to the trial court for consideration when they filed their second response to Head's motion for summary judgment. On appeal, Plaintiffs neither address nor dispute that Head named them as creditors in the Chapter 7 bankruptcy proceedings, that they failed to pursue any stay or relief in the bankruptcy case, and that Head's March 2024 bankruptcy discharge relieves him of all personal liability, if any, to Plaintiffs. See generally McCullough v. CitiMortgage, Inc., 70 N.E.3d 820, 827 (Ind. 2017) (citing Ruth v. First Fed. Sav. & Loan Ass'n of LaPorte Cty., 492 N.E.2d 1105, 1109 (Ind. Ct. App. 1986) (noting, “[a] discharge in bankruptcy has the effect of releasing the bankrupt from any personal liability upon his debts”)). In failing to address Head's bankruptcy discharge, Plaintiffs have not met their burden to persuade us that the trial court's summary judgment ruling on that basis was erroneous.⁴

[11] To the extent that Plaintiffs appear to have abandoned the negligence claim asserted in their complaint and attempt to base their claim against Head on a contract theory, namely Head's purchase of insurance for Dickerson, we observe that they have cited no authority to support any such theory of liability. Moreover, as pointed out by Head in his reply in support of summary judgment, it is undisputed that Plaintiffs were not parties to the insurance agreement between Head and American Family. Additionally, as observed by Head on appeal, Plaintiffs have alleged no facts in support of a breach of contract claim. Appellee's Brief at 16 (citing Franciscan Alliance, Inc. v. Padgett, 180 N.E.3d 518, 522 (Ind. 2021) (observing that breach of contract claim requires existence of a contract and breach of that contract)). Under the circumstances presented, we cannot say that the trial court erred in granting Head's motion for summary judgment.

[12] For the foregoing reasons, we affirm the court's entry of summary judgment.

[13] Affirmed.

FOOTNOTES

1.   Larry Hicks was an original plaintiff and was replaced by his Estate following his death.

2.   In his brief, Head notes that “[b]etween July 2020 and November 2024, the case had been delayed after it was appealed to the Court of Appeals twice.” Appellee's Brief at 6 n.1.

3.   Plaintiffs acknowledge that this “companion case” involved two individuals “seated in her car at the time of the accident.” Appellants’ Brief at 7.

4.   The trial court, in reaching its conclusion, apparently relied upon documents relating to the bankruptcy proceedings that were not designated but have been included in the Appellee's Appendix, and we take judicial notice of the same pursuant to Ind. Evidence Rule 201. See Horton v. State, 51 N.E.3d 1154, 1160 (Ind. 2016) (observing that Evidence Rule 201 “permits courts to take judicial notice of certain material, including facts ‘not subject to reasonable dispute’ and facts ‘readily determined from sources whose accuracy cannot reasonably be questioned[,]’ ” but noting that it is “the preferable practice to enter into the record the particular documents of which the court is taking notice”).

Brown, Judge.

Bailey, J., and Weissmann, J., concur.